Do's and Don'ts of Using Social Media to Screen New Hires

Using social media to find new employees is one thing, but making a prospect fork over their Facebook credentials as part of a background check is something else entirely.

More than one half of employers use social media sites to recruit potential candidates, up from just over a third in 2008, according to a June poll from the Society for Human Resource Management.

More and more these days, however, employers are taking the practice one step further by asking applicants for their Facebook logins as part of the screening process. As recently as two years ago, the city of Bozeman, Mont., required job applicants to supply username and password information for their social media-related accounts. In this instance, public outrage quickly curtailed that policy.

While it's not illegal to ask job applicants for access to their password-protected accounts -- the day will come, I suspect, when a jobseeker sues a prospective employer for violating the Stored Communications Act. That law limits the compelled disclosure of stored wire and electronic communications and transactional records held by Internet-related service providers such as Facebook and Google.

If you're not already cringing in your chair or your company is considering the use of social media when vetting job applicants, here are do's and don’ts to be aware of:

Do have someone other than the ultimate decision-maker conduct the background check, says Eric B. Myers, a partner in the Labor and Employment Group at Dilworth Paxson, LLP, and the author of The Employer Handbook Blog. He points out that if someone other than the hiring manager does the background check, the company may be able to insulate itself against claims of discrimination. Myers also suggests that if, for instance, a Facebook photo shows the applicant smoking marijuana, the background checker could mark “no” on a non-specific checklist that asks, “uses good judgment,” as doing so is less specific than jotting down “the applicant smokes dope,” which may in fact not even turn out to be true.

Do let applicants know that you’re going to be checking their social-media profiles -- and it doesn’t hurt to mention it in your advertisement for the job opening.

Do inform applicants if a third party will be conducting the background check. The Fair Credit Report Act requires applicants to signoff, regardless of whether a password or username is needed to access your profile, if a third party conducts the check. Fail to disclose to the applicant that someone other than an employee at your own firm is conducting the background check, and you open yourself up to a lawsuit, Myers points out.

Don’t compel a job applicant to break a website’s terms or conditions of use. Many social-media utilities and websites prohibit their users from sharing login information with third parties. Do this and you and the applicant could face a lawsuit from Facebook and be found by federal authorities to be in violation of the Stored Communications Act.

Don’t rely on your company’s social-media policy when it comes to job applicants because applicants aren’t covered by the same policies as employees.

Don’t forget to check with your company’s legal counsel before instituting a new hiring practice connected to social media. This remains a very fluid area with new rules and interpretations occurring at a rapid pace.

How have you encountered other do's or don'ts when using social media to screen new hires? Let us know in the comments section.